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; : : : Decision # 93-003-1 THE HUMAN RIGHTS CODE IN THE MATTER OF a Board of inquiry appointed under section 38 of the Human Rights Code, 1981, S.O. 1981, c. 53 as amended (now the Human Rights Code, R.S.O. 1990, C.H. 19) AND IN THE MATTER of the amended complaint by Aquil Lasani dated April 3 1987 and January 11, 1989 against the Ministry of , Community and Social Services and L.E. Strang and Susan Goodman, alleging discrimination in employment, contrary to the Human Rights Code INTERIM DECISION (Effect of Delay) BEFORE A Board of Inquiry comprised of: - Jeffry A. House APPEARANCES Human Rights Commission: - Fiona Campbell - Harriet Simand for Mr. Aquil Lasani Respondent - Marsha Gotesman for the Ministry Community and Social Services . By letter dated August 18, 1992 I was appointed by the Minister of Citizenship to inquire into a complaint made by Mr. Aquil Lasani alleging discrimination by the Ministry of Community and Social Services and by two employees of that Ministry. A conference was held on August 31, 1992, and as a result, the date of November 16th, 1992 was set to allow argument on a motion the Respondents that the matter be dismissed due to delay. The Commission advised me at the outset of argument that they were seeking to withdraw the complaints against the two employees of the Respondent Ministry, L.E. Strang and Susan Goodman, and, there being no objection, this was done. The only parties to the motion, therefore, were the Commission and Mr. Lasani on the one hand, and the Queen in Right of Ontario (Ministry of Community and Social Services) on the other. Ms. Gottesman for the remaining Respondent requested that I exercise my discretion, pursuant to s.23(l) of the Statutory Powers Procedure Act to dismiss due to abuse of process. She said I should do so because it would be impossible to proceed, due to prejudice to a party, namely, her client. The two complaints made by Mr. Lasani were made in April, 1987 and January, 1989, respectively. Ms. Gottesman very fairly indicated that his is not a case in which witnesses are unavailable. Apparently, some have left the Ministry, but can be called to testify Rather, it was submitted, these witnesses will be unable to remember the events which form the subject matter of the complaint. They will be unable to do so, it was submitted, because the documents which are generated in a civil service competition are routinely destroyed by the Ministry. Thus, documents which would otherwise have been available to assist the witnesses to refresh their memories now do not exist. Viva voce evidence was led from the Manager, Human Resources, Hamilton Region, Ms. Livingston. She has been employed in that capacity since March, 1990. She testified that, in making a search in early 1991 for documents relevant to the Lasani complaint, she found that many had been destroyed. For example, the "competition files", which include information about preselection, scoring, ranking, etc. the actual documents which arise in a competition, , were destroyed. Numerous other files were also missing. I was provided with three exhibits which set out their relevant policy within the Ministry with respect to the retention or destruction of records. While it is clear that some records are kept for as long as fifty years, the great bulk of documents which would be relevant to a complaint of this sort are destroyed one year after the end of the year in which they are created. Therefore, a record which arose out of a . -2- competition held May 1, 1987 would be kept for the remainder of 1987, and all of 1988. At that time, it would be destroyed. It appears from the evidence that the initiation of a grievance under the relevant collective agreement causes all material connected to the grievance to be retained until the grievance has been settled. Thus, the filing of a grievance exempts a document from otherwise routine destruction. However, their is no such exemption in place if the complaint has been under the Human Rights Code rather than the collective agreement. In fact, it appears that certain materials relevant to a grievance made by Mr. Lasani were retained for a substantial period, yet once the grievance was settled, they were destroyed, despite an annotation to the effect that the settlement was "without prejudice to Human Rights complaint" Ms. Gottesman pointed out that Mr. Lasani 1 s first complaint, dated April, 1987 alleges discriminatory treatment at least as far back as the latter part of 1982. It would be practically impossible to mount a proper defence, she argued, when the documentary materials to support the witnesses, and to refresh their memories, have been destroyed. A second witness, Mr. D.Vice, support this position. He is Direct Service Manager of the Vocational Rehabilitation Department in which Mr. Lasani was employed. His evidence was forthright, but very uncertain. He indicated that he manages approximately twelve competitions per year, and would have been involved with at least one of the competitions of which Mr. Lasani complains, as the chair. He was unable to say with certainty whether he was the chair, however, since the documentation available to him at this date does not establish that. He had little recollection of the actual event, and tended to answer questions conditionally i.e. "if that was a competition, I would have chaired it." Clearly, the absence of the documentation makes it much more difficult for the facts in this case to be established with certainty. The Commission argued that, although I have the authority under s.23(l) of the Statutory Powers Proceeding Act to dismiss in a proper case, I ought not to do so here. Ms. Campbell for the Commission argued that a pattern of systematic discrimination is alleged, one which might well be invisible until the pattern itself emerges. Thus, she said, Mr. Lasani cannot be faulted for including events from 1982 and before in his 1987 complaint. Secondly, she pointed out that, in the evidence, the Ministry began to look for the files on Mr. Lasani not in 1987, when the first complaint was made, and not in 1989 when the second complaint was made, but only in 1991 when a Human Rights investigator visited Ms. Livingston in Hamilton to make inquiries. She pointed out that, at the point when the first complain was made, the Ministry ought to have had all relevant documents for 1987 and 1986, under the terms " . . -3- of its policy for retention and destruction of documents. Had a decision been made at that time to retain the documents, she argued, the Ministry would have most, if not all of the relevant files available to it today. Ms. Simand, representing Mr. Lasani, concurred with these arguments, and added that her client would be asking me to draw an inference from the destruction of the documents, apparently an inference that there was damaging material in them, which was purposely destroyed to prevent it being made evidence I was provided with numerous cases by both parties. Given the fact that there remain no individuals as Respondents, and given Ms. Gottesman's position that no Charter issue may arise under. 7 when the Respondent is a body corporate, I do not propose to deal with cases such as Saskatchewan Human Rights Commission v. Kodellas and Tripoli Foods, Ltd (1989) 5 W.W.R l(Sask.C.A.) or Douglas v. Saskatchewan Human Rights Commission 52 Sask.R.139 (Sask.Q.B.) The basic principle which governs applications of this nature is set out in Hvman v. Southam Murray Printing (No 1) (1981) 3 C.H.RR. . D/617 (Ont.Bd.Inq. at p. 621. ) / "having been assigned... a statutory defined task of undertaking an inquiry to ascertain facts, the board of inquiry should proceed to attempt to do so, notwithstanding the passage of considerable time, unless the passage of time has made fulfilment of its task impossible. This principle is referred in Gohm v. Domtar (No 1) (1988) 10 . C.H.R.R. D/5968 (Ont.Bd.Inq.) which adds the important proviso that , the board has jurisdiction to dismiss a complaint in appropriate circumstances where to proceed would be "impossible" or "an abuse of process". Ms. Gottesman laid particular emphasis on the case of Guthro v. Westinohouse Canada Inc. No. 2 (1992) 15 C.H.R.R. D/388 (Ont.Bd.Inq.) In that case, the board held that: "the prejudice to a party occasioned by delay must indicate more than inconvenience; it must be sufficiently oppressive to prevent a response or a defence from being made. An unreasonable delay creates an insurmountable problem;a key witness has died, documentary evidence has been destroyed, or some other circumstance has limited the opportunity to defend against the allegations in the complaint," p.D/39l,par 21) (Emphasis added) . . , -4- It therefore falls upon me to determine whether an abuse of process, as referred to s.23 of the Statutory Powers Procedure Act, has occurred in this case. The core of the doctrine of abuse of process is the right and duty of the courts to insure that their process is not used either vexatiously or oppressively by a litigant. Metropolitan Bank Ltd. v. Pooley (1881-85) 1 All E.R. 949 While the doctrine had its origins in civil proceedings, it was easily transferred to the conduct of criminal trials, where similar principles were applied. Connelly v. D P P (1964) 2 All E.R. 401; . . R. v. Osburne (1969) 1 O.R. 152 However, the right to control its process did not give rise to a right in the court to stay a proceeding due to the passage of time alone. Indeed, as late as 1978, a majority of the Supreme Court of Canada held that no such power exists in the common law, even where there is a likelihood of prejudice to the defence in a criminal case. Rourke v. The Queen (1978) 1 S.C.R. 1021 at 1043 (S.C.C.) The continuing authority of the majority decision in Rourke may be in some doubt. In Amato v. The Queen (1982) 2 S.C.R. 418, Estey, J. wrote that the majority discussion of abuse of process in Rourke was obiter dicta. He drew a distinction between cases where the only issue was delay prejudicial to the accused, as in Rourke and cases in which executive actions leading to the charge are themselves offensive to the principles on which the administration of justice is conducted by the courts. Nonetheless, in |L_ v. Young (1984) 13 C.C.C. (3d) 1 (O.C.A.) the Ontario Court of Appeal summarized the principles of fundamental justice, insofar as they relate to delay: "There is a residual discretion. .. to stay proceedings where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. It is a power, however, of special application which can only be exercised in the clearest of cases It is equally clear, according to the present state of the authorities, that absent any finding that the delay in the institution of the proceedings was for the ulterior purpose of depriving an accused the opportunity to make full answer and defence, delay in itself, . -5- even delay resulting in the impairment of the ability to make full answer and defence, is not a basis for a stay of process." (pp. 31-32) In the context of a proceeding under the Human Rights Code, there is a further complication. The making of a complaint to the Human Rights Commission, such as Mr. Lasani made in this case, is not directly analogous to the laying of an information under the Criminal Code. To make that analogy, as was done in argument, is to conflate the investigatory, conciliatory, and prosecutorial functions of the Human Rights Commission. The courts have generally been loath to examine too minutely the investigatory functions of a police department; for that reason pre-charge delay is generally not chargeable to the Crown upon an application for a stay due to excessive delay. v. Kalani (1989) 1 S.C.R. 1594 (S.C.C.) This finding had been foreshadowed in Young . supra, as follows: "Courts cannot undertake the supervision of the operation or the efficiency of police departments and be asked to determine whether the police proceeded as expeditiously as they should have in a given case. Furthermore, to compel the police or Crown counsel to institute proceedings before they have reason to believe that they will be able to establish the accused's guilt would, as Mr. Justice Marshall stated, have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself". (p. 32) In the context of a complaint under the Human Rights Code, the Ontario Human Rights Commission has a duty to investigate complaints brought under the statute. Such investigation may lead the commission to reguest the Minister to appoint a Board of Inquiry, or the Commission may decide, for reasons set out in the statute, not to do so. In an event, there is also a mandatory duty upon the Commission to "endeavour to effect a settlement" of a complaint. While the duty to investigate is closely analogous to the power of the police to investigate reported unlawful activity, the obligation to endeavour to effect a settlement has no analogue in the criminal process, rooted as it is in the different nature of human rights issues. In my view, it is not for a Board of Inquiry to find undue delay in circumstance in which mandatory investigation or attempts at resolution are at the root of the delay. Just as police investigation is not normally chargeable against the Crown as delay, Commission investigation ought not to be chargeable against it in the usual situation. Exceptions would occur in cases such as Young in which there were long periods in which the case simply . lay dormant, and where changes in the statute operated to the . •6- prejudice of the defendant or respondent. Similarly, time which is a consequence of Commission attempts to resolve the matter in accordance with the requirement of the statute cannot be charged against the Commission, unless there is evidence of an oblique motive, or the use of the resolution mechanism to gain unfair advantage In the case before me, the delay has been lengthy, but there has been no showing that the delay is chargeable to the Commission under the principles outlined above. There is no evidence of ulterior purpose in the actions of the Commission, nor, in my view, is there evidence which would cause me to conclude that the fundamental principles of justice have been violated by the Commission. Rather, in my view, it would violate "the community's sense of fair play" as discussed in Young, (supra) were I to give effect to the Respondent's argument. I refrain from any finding that the destruction of documents in this case was motivated by a desire to hide anything from this inquiry. Nevertheless, I do not believe that the Respondent may be permitted to use its policy to insulate it from a Board of Inquiry. It would be strange indeed that the Respondent's failure to retain documents upon which it wishes to rely could provide even a partial basis for an argument that would deny the complainant his day in court. The policy itself is entirely the creature of the Respondent, and can be modified at the convenience of the Respondent. Having been advised that a complaint had been made under the Human Rights Code, the Respondent must be presumed to understand that it is being called upon to justify its decisions concerning the complainant. Even if the destruction of documents makes a defence to the complaint "impossible", as Ms. Gottesman argues, that is the result of decisions made by the Respondent, and cannot constitute an abuse of process by the Commission. In any event, I am not persuaded that the defence does face an impossible task. Even on the assumption that the Respondent has met the onus of showing, on the balance of probabilities, that the lost evidence would more likely than not assist it in the defence of the action, (R. v. Andrew{Ontario Court of Appeal}, 23 December, 1992, Ct.File C-6898) I do not believe that this is one of those "clearest of , cases" in which I ought, to dismiss a proceeding for abuse of process. The motion is therefore denied. Dated January 27th, 1993